JANE KEANE
INDEPENDENT YET ACCOUNTABLE?
THE JUDICIAL CONDUCT COMMISSIONER AND JUDICIAL CONDUCT PANEL ACT 2004
LLB(HONS) RESEARCH PAPER
LAWS 503: COMPARATIVE CONSTITUTIONALISM
LAW FACULTY
VICTORIA UNIVERSITY OF WELLINGTON '...,
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Victoria
UNIVERSITY OF WELLINGTON Te Whare i¼inanga o te Dpoko o re lka a Mau;
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LIBRARY
ABSTRACT
This paper examines the Judicial Conduct Commissioner and Conduct Panel Act 2004 (the "Act"), which implements a formal procedure to receive complaints about judicial conduct. It analyses the Act from the perspective of the balance it achieves between the two fundamental principles, and frequently opposed principles, of judicial independence and accountability. The Act sets up distinct procedures for minor complaints, and complaints of sufficient gravity to warrant consideration of removal. These procedures are analysed separately.
For the treatment of minor complaints, the Act preserves the existing situation where the Head of the Bench considers complaints informally and in private.
The major initiative in the Act is in the creation of a mandatory investigation procedure that must precede the removal of a judge.
This paper concludes that the Act strikes an appropriate balance between independence and accountability. While the Act does not implement a wholly transparent complaints procedure, particularly in relation to minor complaints, it provides for an independent judiciary.
Word Count (excluding abstract, contents page, and bibliography): 14, 881 words.
LAW LIBRARY
I INTRODUCTION ... .. ... ... ... 1
II PRINCIPLES IN TENSION ... 3
A Judicial Independence ... ... ... .... 3
B Judicial Accountability ... ... 6
C Balance Between Judicial Independence and Accountability ... 10
III ACCOUNTABILITY BEFORE THE ACT .... .. ... .... .. ... .. ... 11
A Informal Complaints Procedure ... ... .. ... .. .... ... 11
B Removal of Judges from Office ... 15
IV GOVERNJ\1ENT RESPONSE ... ... ... 16
A Problems with the Informal Procedure ... ... .. ... .. ... .. ... 17
B Inadequacy of the Removal Provisions ... ... ... .. ... 19
V FORMAL COMPLAINTS PROCEDURES ... 22
A New South Wales .. .. .. ... .. .... ... .. ... 22
B Canada .. ... ... ... .. ... ... .. ... .. .. ... .. ... 23
C The Judicial Conduct Commissioner and Judicial Conduct Panel Act ... 25
2004 .. ... .. ... 25
VI ANALYSIS OF THE MINOR COMPLAINTS PROCEDURE ... 29
A Strengths of the Procedure ... 29
B Should the Act Have Gone Further? ... ... .. ... .. ... 31
C Conclusion on the Minor Complaints Procedure ... ... 39
VII COMPLAINTS THAT COULD JUSTIFY DISMISSAL ... 39
A Protection for the Judge and Judicial lndependence ... .40
B Public Confidence in Judicial Accountability ... .44
C Constitutional Implications ... .... ... .46
D Success of the Removal Procedure ... .. ... .. ... ... 50
VIII CONCLUSION ... .. ... .. ... .... ... .. .. ... .. ... 51
I INTRODUCTION
All the hallmarks of the judiciary flow from its central role of adjudication.
Judges must be impartial so they can fairly decide between conflicting positions.
Judges must be independent so that they will be able to act impartially and be seen to act impartially.1
Accountability of the judiciary cannot now be seen in isolation. ft must be viewed in the context of a general trend to render governors answerable to the people in ways that are transparent, accessible and effective.2
Judges are influential members of society. They have the authority to resolve disputes, grant rights, and impose obligations.3 The public therefore wants judges, as with all public office holders, to account to society for the way they carry out the judicial function . It is uncontroversial that judges should, and do, account for the decisions they make. In addition, the public calls for judges to account for their conduct.
This desire to hold judges accountable for their conduct must be placed in context. It is a long-established principle that a pre-requisite for an impartial justice system, is an independent judiciary. Judicial independence requires that judges are free to make their decisions based purely on the law and their conscience; without fear or favour.4 The risk is that the more judges are held to account, the greater the likelihood that improper pressure is placed on them.5
The paradox is that public confidence in justice relies on both judicial independence and accountability. If judges are not independent, and do not deliver impartial decisions, public confidence suffers. To restore confidence,
1 Rt Hon Beverley McLachlin "The Supreme Court and the Public Jnterest" (200 l) 64 Sask L Rev 309,311
2 Hon Michael Kirby "Judicial Accountability in Australia" (Commonwealth Legal Education Association, Brisbane, 6 October 200 I), 6.
3 McLachlin, above n I, 311.
4 Canadian Judicial Counci I "Ethical Principles for Judges" ( 1998) 8 ["Ethical Principles for Judges"].
5 Vince Morabito "The Judicial Officers Act 1986 (NSW): A Dangerous Precedent of a Model to be Followed?" ( 1993) 16(2) U NSWLR 481, 490.
accountability for conduct may be necessary. In holding judges accountable however, this could threaten their independence.
Are judicial accountability and independence absolutes opposed, or is it possible they can be complementary? The recent enactment of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the "Act"),6 goes to the heart of this issue. The Act implements a general statutory complaints system to receive all complaints made about judicial misconduct. It also lays down a mandatory procedure for the removal of all judges. The dual purpose of the Act is to "enhance public confidence" in the judicial system through implementing a strong complaints system, and to "protect the impartiality and integrity of the judicial system".7
This paper analyses the Act from the perspective of the balance it achieves between judicial independence and accountability. In doing so, reference is made to the New South Wales and Canadian formal complaints procedures that provided the explicit models for the New Zealand Act. This paper makes a division in analysis between complaints that do not raise consideration of removal (referred to as "minor" complaints), and those that do.
The first section sets out the principles of judicial independence and accountability. The second outlines the situation relating to judicial misconduct before the Act. It sets out the informal complaints system designed to receive minor complaints, and the statutory provisions providing for the removal of judges in exceptional cases of misconduct. The third section looks at why the New Zealand Government decided to formalise the complaints procedures. The fourth sets out the New Zealand Act, and the New South Wales and Canadian equivalents. The fifth analyses the minor complaints procedure under the Act.
The final section looks at the removal procedures.
6 The Act developed out of the Judicial Matters Bill. It will come into force on a date appointed by the Governor-General through an Order in Council.
7 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 4.
This paper concludes that Act reaches an appropriate balance between independence and accountability. While it does not substantively increase accountability for minor complaints, this is the right choice. Removing the ability of the judiciary to self-regulate would have implications for judicial independence. It also concludes that the process that must precede the removal of a judge is sound. It is an open investigation procedure that is harmonious with judicial independence. The only reservation with the Act is the power it gives to the Attorney-General in the investigation process.
II PRINCIPLES IN TENSION
The two fundamental principles that underlie the Act are judicial independence and accountability. The purpose of the Act is to "enhance public confidence in, and to protect the impartiality and integrity of the judicial system", through the new complaints procedure.8 This is an ambitious dual purpose, and it is important to understand what judicial independence and accountability mean, when they are complementary, when they are antagonistic.
A Judicial Independence
Judges serve the public.9 The primary role of a judge is to resolve disputes arising on the application of the law, whether between citizens or between a citizen and the state. They uphold the rule of law in society, and act as a shield against unwarranted incursions on the freedoms of individuals by the state.10 Judges are immensely important to the litigants that appear before them because they can grant the individual rights, or conversely, impose obligations.11 The individual litigant, and citizens generally, want to be assured that any given judge will dispense the law impartially. Society wants the judge to apply the law free from bias; actual or perceived.12
8 Judicial Conduct Conunissioner and Judicial Conduct Pane l Act 2004, s 4.
9 McLachlin, above n I, 3 I 0.
IO Ell V Alberta (2003]
sec
35 para 22 Major J.11 Therrien c Quebec [200 I]
sec
35 para 108 Gontheier J.12 Lippe c Charest 39 QAC 241 para 61 Lamer J.
Ensuring that judges are independent is the most effective way to secure impartial decision-making. The perception of judicial independence is also central to the public's confidence in the administration of justice. Independence and impartiality, while interrelated, are distinct concepts. Judicial independence is valued insofar as it is the means to the greater end of impartial decision- making.
At the heart of judicial independence is the idea that judges must be able to freely make their decisions based on the law without fear or favour.13 The principle of judicial independence, which began with this very simple proposition, has expanded and strengthened over the years. There is a now commonly accepted "two-pronged" articulation of judicial independence where individual independence and institutional independence are seen as separate, yet complementary.14
1 Individual Independence
Individual independence, the historical core of judicial independence, requires that judges are able to discharge the judicial functions without outside interference, 15 and without regard to self-interest. Individual independence is concerned purely with the adjudicative function and the dispensing of justice in every case.16 An issue for individual independence is whether the presence of a formal complaints system will in any way impinge on the freedom of judges in the adjudicative role.
To be independent, and to be seen to be independent, a judge must have financial security and security of tenure. 17 Secmity of tenure requires that the government should not dismiss a judge when he or she makes an unpopular decision. The Supreme Court of Canada, taking this concept further, stated that a judge could only be removed from office for serious and very specific reasons
13 " Ethical Principles for Judges", above n 4, 8.
14 Moreall-Berube c NoL1 veaL1-8runswick [2002] SCC 11 para 56 Arbour J.
15 Application under s 83.28 of the Criminal Code, Re [2004] SCC 42 para 172 Le Bel J.
16 Mackin v New Brunswick (Minister of lllstice) (2002) SCC 13 para 39 Gonthier J.
17 Application L111der s 83. 28 of the Criminal Code, above n 15, para 171.
following an independent review where the judge is able to speak and defend him or herself. 18
In New Zealand, security of tenure is enshrined in section 23 of the Constitution Act 1986. A Judge of the High Court (including the Court of Appeal) cannot not be removed except by the Governor-General acting on an address from the House of Representatives. An address may only be moved on the grounds of misbehaviour or incapacity to discharge the functions of judicial office.19 There is an equivalent provision in the District Courts Act 1947 where the Governor-General, on the advice of the Minister of Justice, can remove a District Court Judge on the grounds of misbehaviour or inability.20
Security of tenure is relevant to an analysis of the new judicial complaints system because the Act sets up a procedure that could lead to the dismissal of a judge. Two particularly important questions in this context are whether the tenure of judges is strengthened by the new investigation process, and whether greater power over the tenure of judges has been placed in the hands of the executive at the expense of parliament.
2 Institutional Independence
Institutional Independence attaches to the judiciary as an institution, and requires that the judiciary is separate, in fact and appearance, from both parliament and the executive. Institutional independence ties closely into the theory of separation of powers in that it demands there is independence between the judiciary and the two other branches.21
If the courts are going to fulfil their role as protector of individual rights and liberties, they must necessarily be independent from the branches that might seek to diminish those rights and liberties.22 The appearance of separation is
18 Application under s 83.28 of the Criminal Code, Re, above n 15, para 171.
19 Constitution Act 1986, s 23 .
20 District Courts Act 1947, s 7.
2 1 Application under s 83. 28 of the Criminal Code, above n 15, para 179.
22 Ell v Alberta, above n I 0, para 22.
central to public confidence in the administration of justice. For if the public does not believe that the judiciary is acting independently, and protecting their rights against governmental excesses, there will be a loss of faith in the justice system as a whole. When such a loss of faith occurs, the judiciary cannot claim legitimacy or command the respect and acceptance essential to the judicial function.23
The impact that the Act may have on institutional independence is more subtle than any possible impact it may have on individual independence. The Act may set up an independent process to investigate complaints about judicial misconduct, but it also gives greater control to the Executive, through the Attorney-General, over judicial tenure. The new system therefore creates the possibility of a relationship of influence flowing from the Executive to the Judiciary.
B Judicial Accountability
This is an age where there is an increasing call for the accountability of all those who "wield public power".24 Members of government have the power to make decisions that impact on society as a whole through the positions that they hold. Society authorises members of government to exercise power on the condition that they account for their actions.25 Members of Parliament are held accountable through regular public elections. The public service is increasingly accountable for its decisions through the development of judicial review and the creation of the Ombudsman. The judiciary, being the third branch of government, does not escape the call for greater accountability.
Judges, who hold a unique position in society, unquestionably need to account to society. While judges do not have the explicit role of making the law, they strongly influence the development of it. In deciphering the law, and
23 Mackin v New Brun swick (Minister of Justice), above n 16, para 38.
24 Kirby, above n 2, 3.
25 Kirby, above n 2, 6.
deciding between competing interpretations,26 judges are making very significant decisions. They are particularly important in the development of the common law where judges develop rights and impose obligations, without the direction of parliament.
Judicial accountability is necessary not only for the reason that judges are powerful, but also because public confidence in the judiciary relies on a judiciary that is held accountable. The integrity of the judiciary diminishes if
the public perceives that its behaviour is unchecked.
While it is obvious that accountability is necessary, the more difficult question is deciding on the form and extent to which it should take. Enhancing judicial accountability is a delicate exercise because it is absolutely necessary to ensure that any "changes do not place the critically important constitutional value of judicial independence at risk".27 The New Zealand Law Society is wary about increasing accountability:28
Judges it is said, are public servants who must, like all other public servants, be
"accountable for their actions". "Accountability", and other buzz words like
"transparency" and "robust process", are tossed about as if their frequency of use makes them inevitably applicable to every situation, even if their meaning often remains obscure.
The first step is to decide what accountability should mean in the judicial context, and the next is to look at how accountability should be increased.
1 Accountability for the judicial function
The most important function of a judge is to adjudicate disputes, and it is beyond doubt that the judiciary should be, and has for a long time been, accountable to the public for the way that it discharges this function.29 Judges
26 Peter Hogg Constitutional Law of Canada (3ed, Carswell, Toronto, 1992) I 21.
27 Antonio Lamer "The Rule of Law and Judicial Independence: Protecting Core Values in Ti mes of Change" (1996) U NB L J 3, 12.
28 New Zealand Law Society "Submissions on the Judicial Matters Bill" para 16.
29 Lamer, above n 27, 13.
are required to hold their hearings in public, and they are required to issue a judgment setting out the reasons for the decision. The public judgments are also rigorously scrutinised by the media. These requirements mean that the public gain insight into why the judge reached the particular decision and this makes it easier for an individual to challenge it.
The appeal and review processes are the most direct way that judges are held to account. If a judge makes an error of law, or holds biases for or against those who appear in court, a higher court will correct these mistakes. The appeal process therefore addresses the greatest concern for members of the public, and that is that justice was not delivered.
2 Accountability for judicial conduct
While it is uncontroversial that judges must be held accountable in their official capacity, the extent to which judges should be accountable for their conduct is more contentious. Before assessing the need for accountability, it is firstly necessary to understand the importance of judicial conduct to the public's confidence in the administration of justice.
Judges hold a umque position m society and that is why judges are expected to be beyond the judgment of others; they are in a "place apart" in our society.30 The public asks not only that judges serve the ideals of truth and justice but that they also embody them.31 This demands a high standard of conduct for it asks that judges are an example of impartiality, independence and integrity, and this is much more than is expected from any other member of
. 3?
society. -
The public loses confidence in the justice system when a judge is insulting, racist, sexist, intemperate to those who appear before them, or makes
30 Therrien c Quebec (Minister of Justice), above n 11, paras 111-112.
31 TherriencQuebec(MinisterofJusrice),aboven II.para 109.
32 Therrien c Quebec (Minister of Justice), above n 11, para 111.
statements that suggest that he or she has prejudged a particular issue.33 Comments and behaviour, both in and outside the courtroom, can lead to the impression that the particular judge is not impartial. To restore public confidence in the judiciary when there have been instances of misconduct, it is necessary that the public can see that behaviour of judges does not go unchecked. Judges are already accountable for their conduct in a number of ways.
When misconduct occurs in the discharge of judicial duties, and is alleged to have impacted on the decision in a case, the appeal and review procedures are designed to respond to this. The New Zealand Law Society argues that where a review or appeal succeeds on the grounds of judicial misconduct, this amounts to a "substantial public rebuke".34
Judicial conduct is routinely scrutinised by the media and cases of judicial misconduct, such as the allegations of false accommodation and travel expense claims made against Judges Beattie and Hesketh,35 do make the headlines. Is media scrutiny of judicial misconduct in New Zealand diluted however, by the offence of contempt of court, and scandalising the judiciary in particular?
Scandalising the judiciary arises when there is interference with the administration of justice, and a publication calculated to lower the authority of the judge and the court, may be in contempt of court.36 Members of the media could be guilty of scandalising the court if they attribute improper motives to a judge.37 As the High Court noted in the recent case of Solicitor-General v Nicholas Rex Smith, scandalising does not exist to "protect the ego or feelings
33 "Ethical Principles for Judges", above n 4, 32.
34 New Zealand Law Society, above n 28, para 24.
35 Rob Drent " Beattie: A Question of Integrity" ( 3 August 1997) Sunday Star Times Auckland 5. 36 Solicitor-General v Radio Avon [ 1978] I NZLR 225, 231 Richmond P.
37 Solicitor-General v Radio Avon, above n 36,230.
of individual Judges. It is to prevent the undermining of public confidence in the competence and integrity" of judges "and thus the authority of the courts.38
It is rare in New Zealand for anyone to be found guilty of scandalising the court, yet Solicitor-General v Radio Avon and Solicitor-General v Nicholas Rex Smith both show that the offence exists and is used. The mere existence of scandalising might discourage media scrutiny of judicial propriety. It is therefore particularly important in New Zealand that other mechanisms exist to hold judges to account.
In 1999, the Government created an informal complaints system to receive all complaints about judicial misconduct that cannot be dealt with through the appeal and review processes. Under this system, the Head of the Bench receives all of the complaints and has the ability to look into them and discuss the complaint with the judge concerned. This process takes place behind closed doors. The question is whether there was a need for further accountability in the form of a statutory complaints process?
C Balance Between Judicial Independence and Accountability
If the judicial system is to have legitimacy, the judiciary must command the respect and support of the public. Public confidence depends both on an independent judiciary delivering impartial decisions, and an accountable judiciary. A problem in New Zealand is that although the public is clear that accountability is necessary, it poorly understands the significance of judicial . d d 39
m epen ence. It is true that greater accountability strengthens the justice system because it ensures that judges do not go unchecked. Yet it is equally true, that if further accountability erodes judicial independence, this will severely weaken the judicial system.
38 Solicitor-General for New Zealand v Nicholas Rex Smith (24 March 2004) HC WN CIV 2003 485 J 8 J I, 29 J udgment of the Court.
39 Hon Sian Elias" 'The Next Revisit': Judicial Independence 7 Years On" (Neil Williamson Memorial Lecture, Christchurch, 30 July 2004) 2.
The difficulty with securing both independence and accountability lies in the fact that there does come a point when the two principles are antagonistic.
The more that society scrutinises the behaviour of judges and holds them to account, "the greater the likelihood that attempts will be made to exert improper pressure on them".40 Tied closely to this is that the more judges are scrutinised, the more restriction they may feel.
Public confidence cannot be an absolute touchstone when considering an appropriate complaints system for several reasons. Firstly, what does public confidence actually mean? It is a diffuse concept. Secondly, the public is often completely uniformed; public confidence feeds off the media who do not always provide a balanced perspective. While it is important to secure public confidence, it is more important to secure an independent judiciary that delivers justice.
III ACCOUNTABILITY BEFORE THE ACT
Before the Act, there were already mechanisms in place to respond to complaints of judicial misconduct. The primary procedure, which largely remains in force under the Act, is an informal complaints procedure. This procedure is designed to deal with the raft of minor complaints made about judicial misconduct. In addition to this, there were also statutory provisions providing for the removal of a judge. These provisions responded to complaints alleging very serious misconduct. They too remain in force under the Act.
A Informal Complaints Procedure
In 1999, the Chief Justice Sir Thomas Eichelbaum, and the Minister of Justice Hon Doug Graham, introduced a complaints procedure that involved the Head of the Bench and a Judicial Complaints Lay Observer (the "JCL0").41
The procedure got under way in 2001 when Hon Margaret Wilson made the first
40 Morabito, above n 5, 490.
4 1 Rt Hon Geoffrey Palmer "Judicial Administration Issues" ( 1 Nove mber 2002) 27.
appointment of the JCL0.42 The Ministry of Justice issued a booklet, on behalf of the Chief Justice and the Attorney-General, titled "The Judicial Complaints Process", detailing the complaints procedure.
Members of the public are only to use the complaints procedure where the complaint relates to judicial conduct. Where the complaint concerns the outcome of a case, the complainant is instructed to use the review and appeal processes. The distinction between judicial conduct and the outcome of a case is not entirely straightforward. Where judicial misconduct occurs in court, it can lead a litigant to the impression that the judge did not make an impartial decision in a particular case. Therefore, a complainant could be concerned both with the conduct of a judge and the outcome of a case. The intention is that where misconduct is perceived to have affected the result of a case, this can, and should, be remedied through the appeal and review processes. Where on the other hand, misconduct is not alleged to have impacted on a case, but is nonetheless inappropriate, the complaints procedure is designed to respond to this.
All complaints made about the conduct of a judge are to be made to the Head of the Bench, and the booklet "broadly" summarises the procedure that takes place from that point on.43 It is important to note that the steps set out are not compulsory and the complainant does not have a right to enforce them.
Rather, they are guidelines for the procedure that should take place on receipt of a complaint.
When the Head of the Bench receives a complaint, he or she will first establish that the complaint concerns judicial conduct.44 Where the complaint does not relate to judicial conduct, the Head of the Bench advises the complainant of this and informs them about any other avenues, such as appeal, that they could pursue. Provided that the complaint concerns judicial conduct,
42 "Judicial Complaints Lay Observer Appointed" (7 March 2001)
<http://www.scoop.co. nz/mason/stories/P AO I 03/S00090. htm> (last accessed 29 September 2004).
43 Ministry of Justice "The Judicial Complaints Process" (200 I) 2 ["The Judicial Complaints Process"].
44 "The Judicial Complaints Process", above n 43, 2.
the Head of the Bench makes a preliminary decision about whether there is any substance to the complaint. If it appears that the complaint does have substance, the Head of the Bench refers the complaint to the judge in question, considers any response, and makes any further inquiries that he or she believes appropriate.45 Where the Head of the Bench proceeds with these inquiries, the complainant is notified of this.
When the Head of the Bench decides that a complaint has substance in fact, the booklet sets the general parameters for what the Head of the Bench might do. The Head of the Bench decides on the appropriate action, and he or she can consider options such as asking the judge to convey an apology to the complainant, or offering the judge appropriate assistance to avoid such conduct in the future.46 While appropriate action is not limited to the above two options, there is no further indication about what the Head of the Bench might do. It is quite possible that the Head of the Bench will not take any action.
The complaints procedure also includes a review by a non-statutory appointment, the Judicial Complaints Lay Observer ("JCLO"). When the Head of the Bench makes the preliminary finding that the complaint is without substance, the complainant is advised both of this finding and of the right to refer the complaint to the JCL0.47
The JCLO has the power to review the complaint, the way it was processed, any response from the judge, and any other relevant matters.48 The review and any inquiries are conducted in confidence. If the JCLO feels the decision not to pursue the complaint should be reconsidered, he or she can ask the Head of Bench to do so.49 The JCLO informs the complainant about whether reconsideration of the complaint is recommended to the Head of the Bench.
45 "The Judicial Complaints Process", above n 43, 2.
46 "The Judicial Complaints Process", above n 43, 2.
47 "The J uclicial Complaints Process", above n 43, 2.
48 "The Judicial Complaints Process", above n 43, 3.
49 "The Judicial Complaints Process", above n 43, 3.
The JCLO is an integral part of the complaint process through providing an independent check on the consideration of complaints. The usefulness of the role is however limited. The JCLO is confined to recommending that the judge reconsider whether there is substance to the complaint, and the power is merely that, recommendatory. Moreover, the JCLO plays no part where a complainant believes the Head of the Bench did not take appropriate action once a finding of substance has been made.
1 Problems statutory incorporation might introduce
The informal complaints system has been running since 2001, and the question is whether formalising this process, as the Government has now done, could cause further problems. The New Zealand Law Society, in its submission on the Judicial Matters Bill, stated that formalising the complaints process could do more damage because of the impact it will have on judicial independence.
There are several factors that can be advanced in support of this contention.
Firstly, a concern the New Zealand Law Society raised, and a concern Judith Collins MP stressed during debate in the House,50 is that the mere existence of the statutory procedure will encourage people to make
1 · 51
comp amts. The figures relating to complaints made under the informal complaints system show that most of the complaints are disguised forms of appeals.52 The New Zealand Law Society feels that a feature of the judicial system, and one that tends to be overlooked when considering complaints of judicial misconduct, is that there will always be litigants who are not satisfied with the result of a case. These litigants will use any available process to vent their frustration with the result of the case.53
50 (4 September 2003) 611 NZPD 8404.
5 1 New Zealand Law Society, above n 28, para 35.
52 In 2001 , a total of 70 complaints were made against the benches combined. Of those, 33 were disguised forms of appeal.
53 New Zealand Law Society, above n 28, para 36.
While judges do have to bear the burden of this behaviour, the New Zealand Law Society argues that judges are entitled to have a system that adequately protects them against these complaints. The statutory system, which may encourage more complaints, can only add to the pressures that judges already face.54 The concern is that judges will feel further restriction when they are making decisions in court.
In addition, the New Zealand Law Society argues that it is not appropriate to have a person with formal power scrutinising the behaviour of judges.55 If someone has the power to make an adverse finding about the conduct of a judge, they are in a position of superiority to the judge.
While the New Zealand Law Society does raise valid concerns, the concerns do not inevitably lead to the conclusion that formalising the complaints system is not desirable. It is correct that a statutory system could lead to an increase in complaints, yet in itself this is not a negative consequence.
In fact, if the increase is due to the fact that people with genuine complaints now have an obvious forum to take them, this is to be encouraged. Admittedly, there is likely to be an equivalent increase in complaints that are not genuine. It will therefore fall on the particular system to weed those complaints out at the earliest point.
Providing a person with authority to look at the conduct of a judge is not a decisive criticism either. In any fonnal complaints procedure, someone is going to have the power to scrutinise the conduct of judges. The more important question is how closely the power is circumscribed to prevent manipulation of that power.
B Removal of Judges from Office
54 New Zealand Law Society, above n 28, para 36.
55 The New Zealand Law Society submission was in response lo the Judicial Matters Bill, and so their complaint about a statutory officer is specific lo the Judicial Conduct Commissioner that is set up under the Act.
In the event of very serious judicial misbehaviour, there has always been statutory power to remove a judge from office. Section 23 of the Constitution Act 1986 empowers Parliament to make a motion to remove a High Court Judge, or an Employment Court Judge, on the grounds of misconduct or incapacity. The District Court Act 1947, governing the removal of a District Court Judge, permits the Governor-General to remove a District Court Judge on the grounds of inability or misbehaviour.56 The Minister of Justice is to advise the Governor-General when to make this decision.57 The issue is that these provisions represent the outcome, which is the removal of a judge, and do not set out the procedure that would identify serious misbehaviour or incapacity.
As a judge has never been removed in New Zealand, there is no certainty regarding the procedure.
A number of suggestions have been made about what could take place before Parliament made a motion for removal. The Ministry of Justice noted that Parliament would be free to establish a Select Committee Inquiry to investigate allegations of misconduct. 58 The concern with that is it would be unseemly for a judge to appear before a committee of Parliamentarians and justify his or her behaviour. Another option would be for Parliament to debate about the misbehaviour of a judge. It is equally possible that Parliament could make a motion for dismissal without carrying out any inquiry. The Constitution Act 1986 does not actually require that removal be on the grounds of "proven"
misbehaviour.
IV GOVERNMENT RESPONSE
The creation of the Act is indicative of the fact that the Government perceived problems both with the info1mal complaints procedure dealing with minor complaints, and the provisions governing the exceptional case of
56 District Courts Act 1947, s 7.
57 John McGrath "Judge M J Beattie: Section 7 District Courts Act l 947" (prepared for the Minister of Justice, l September 1997) 2.
58 Ministry of Justice "Response to the Justice and Electoral Committee: Initial Information Request" (5 February 2004) 17 [" Initial Information Request"].
misconduct where a judge should be removed. This section analyses the shortcomings with these procedures.
A Problems with the I nf onnal Procedure
It is difficult to pinpoint the problems with the informal system because little discussion was devoted to the procedure for minor complaints as the Judicial Matters Bill passed through the House. In fact several groups, particularly the New Zealand Law Society, argue that there were no such problems. The Law Society points to the fact that the Government did not have any empirical evidence to suggest that there was current dissatisfaction with the informal procedure,59 or that the number of complaints justified a change.60 As the procedure only began in 2001, there has been little time to gather any information. Sir Geoffrey Palmer, who undertook the initial review that sparked the later legislative progress, felt there was no suggestion the informal process was "fundamentally flawed". 61 The Government made changes however, and it is important to understand why.
The purpose of the Act is to "enhance public confidence in, and to protect the impartiality and integrity of the judicial system". The Hon Margaret Wilson explicitly states that the "transparent" and "accessible" system will achieve the stated goals.62 The problems were therefore that the inf01mal complaint system was not accessible enough and that it lacked transparency.
The informal complaints system was not an obvious mechanism, creating problems for accessibility. There is support for the fact that it was not obvious. Even though the established procedure was to make complaints to the Head of the Bench, complaints were made to both the Crown Law Office and
h M . . f J · 63
t e 1111stry o ust1ce. A complaints system is not an effective mechanism if those who will use the system are unaware that it exists and how to use it.
59 New Zealand Law Society, above n 28, para 28.
60 New Zealand Law Society, above n 28, para 32.
61 Palmer, above n 41, 27.
62 (11 May 2004) 617 NZPD 12794.
63 Ministry of Justice "Response the Justice and Electoral Commillee: Second Information Request" (20 February 2004) 8 ["Second Information Request"].
The fact that the complaints system was not obvious has a further implication. As complaints were made to several bodies and there was not a uniform system for receiving them, it meant that it was difficult to collect data about the number of complaints and the grounds on which they were made.
Neither the Ministry of Justice and the Crown Law Office kept a formal record of complaints.64 There was not a co-ordinated approach to complaints either, because the Ministry of Justice comments that it is not clear how many of the same complaints were also made to the Head of the Bench.65
The lack of a formal record containing all complaints means that an effective response to judicial misbehaviour is less likely. Only when you can gather information about how and why judges are misbehaving can you target judicial education programmes in the necessary area.
A further concern with the informal complaints system was the lack of transparency attaching to the complaints process. While the complainant was aware broadly aware of the procedure for dealing with a complaint through the outline provided in 'The Judicial Complaints Process", the complainant could not see how the Head of the Bench considered and responded to the complaint.
Although the Head of the Bench could notify the complainant about the progress of the complaint, the process was not sufficiently transparent.
The inclusion of the JCLO in the process alleviated, to some extent, the lack of transparency surrounding the role of the Head of the Bench. Through the power that the JCLO had to look at how the Head of the Bench considered the complaint, and recommend to the Head of the Bench to reconsider, an independent mechanism was available to an unhappy complainant. As the JCLO considered the complaint in confidence however, there is still a problem with transparency.66 Where a system is not transparent, the public cannot have absolute confidence in it.
64 Second Information Request, above n 63, 8.
65 Second Information Request, above n 63, 8.
66 "The Judicial Complaints Process", above n 43, 3.
During debate in the House, Richard Worth MP commented that a problem with the adequacy of the informal complaints system was the response to judges who misbehaved.67 The Head of the Bench did not have any formal powers over other judges, and in fact played more of a counselling role towards the judge than a disciplinary role.68 The perception is that minor misconduct was not dealt with meaningfully.
B Inadequacy of the Removal Provisions
What mostly concerned the Government, and provided the impetus for the Judicial Matters Bill, was the lack of an established procedure to investigate the conduct of a judge preceding removal. The Government argued this lack of certainty could have strong consequences if it was not rectified before the question of removing a judge arose in New Zealand. The Government pointed to the implications such lack of certainty had in both Australia and Canada when allegations of serious misconduct were made against judges. Australia and Canada both set up ad hoe commissions to respond to allegations of serious misbehaviour, and in both countries there were negative repercussions.
Canada had to respond to the question of removing a judge when serious allegations were made about the conduct of Justice Landreville. In 1964, the Attorney-General for Ontario laid charges against Justice Landreville.69 The accusation was that while Landreville was the Mayor of Sudbury, he had agreed to accept stock in a company called NONG, in return for using his influence to see NONG obtain a franchise agreement in Sudbury.70 After hearing the case, the Magistrate discharged it.71
Following this, the Law Society of Upper Canada formed a special committee to look into the conduct of Justice Landreville. Justice Landreville
67 (l l May 2004) 617 NZPD 12796.
68 Ministry of Justice "Response to the Justice and Electoral Committee: Third Information Reque t" (15 March 2004) 10 ["Third Information Request"].
69 Landreville v R (No.2) [ 1977) 2 FCR 726 para 25.
70 Landreville v R ( No.2), above n 69, para 25.
7 1 u:mdreville v R (No.2), above n 69, para 25.
first became aware of the inquiry when he was provided with a report recommending that the Law Society should not support him continuing to sit as a judge. Once this report entered the public arena, the Minister of Justice decided that in the interests of Justice Landreville, and the administration of justice, a formal inquiry was desirable.72
In 1966, the Governor in Council appointed the Honourable Ivan Rand, a retired Judge of the Supreme Court, as a Commissioner of a Royal Commission of Inquiry.73 The Minister of Justice felt an Inquiry was more appropriate than introducing a motion directly in Parliament for several reasons.74 Firstly, there were factual disputes that needed to be determined.75 Secondly, the decision to remove a judge from office was essentially judicial in nature, and it was felt that Parliament was an "unwieldy institution" for
. . h f . 76
exerc1smg sue a unction.
The inquiry was riddled with problems. While Justice Rand had been given clear terms of reference, he did not remain within them.77 No restrictions were placed on his right to compel witnesses, and similarly no restrictions were placed on procedure. The Rand Commission and its Report have been described as a "travesty of justice".78 Concern was also expressed over the fact that Government had the power to select a Royal Commission and "empower it to scrutinize the conduct of a superior courtjudge".79
Commissioner Rand issued his report in August of 1966 and several weeks later it was tabled in the House of Commons.80 A special Joint Committee of the Senate and the House of Commons was then appointed to look into whether an address should be made to the Governor-General for
72 Landreville v R (No.2) , above n 69, para 39.
73 Landreville v R (No.2), above n 69, para 5.
74 Ed Ratushny "Speaking As Judges: How Far Can They Go?" (1999-2000) National Journal of Constitutional Law 293, 305.
75 Ratushny, above n 74, 305.
76 Ratushny, above n 74, 305.
77 Ratushny, above n 74, 305.
78 Ratushn y, above n 74, 305.
79 Ratushny, above n 74, 305.
80 Landreville v R (No.2 ), above n 69, para 6.
removal.81 The Committee, after 19 meetings where they heard from Justice Landreville and read the report by Commissioner Rand, concluded that Justice Landreville had proven himself unfit for office. It recommended that an address for removal be made to the Govemor-General.82 Justice Landreville resigned shortly after the Committee reached its conclusion.83
The members of the Committee were not immune from criticism either.
They were not seen to take their task seriously and their low attendance rate was indicative of this.84 A further problem was that there "was something unseemly about the fate of a judge being thrust into political hands". 85
Concerns also surrounded an ad hoe investigation in Australia into the behaviour of Justice Murphy, a member of the High Court. The allegations led to a joint Federal New South Wales police task force inquiry, the establishment of two Senate Committees, a Commonwealth Parliamentary Commission of Inquiry, a Royal Commission of Inquiry and several appeals before the New South Wales Court of Appeal and the High Court.86 In New South Wales, the adverse publicity created by the allegations caused a loss of confidence in the
· d" · 87
JU 1ciary.
New South Wales and Canada responded to the failures of these ad hoe commissions by implementing formal complaints systems. The Landreville incident has been described as "a watershed in the historical development of an adequate institutional response to allegations of misconduct by superior court judges".88
Australia and Canada both illustrate the fact that if there is not an established procedure, the investigation process can spiral out of control into a
81 Landreville v R (No.2) , above 11 69, para 8.
82 Landreville v R (No.2) , above 11 69, para 9.
83 Landreville v R (No.2) , above 11 69, para JO.
84 Ratush11y, above 11 74, 305.
85 Ratush11y , above 11 74, 305.
86 Morabito, above 11 5, 482.
87 Morabito, above 11 5, 484.
88 Ratush11y, above 11 5, 305.
number of separate inquiries. This is certainly not desirable from the perspective of the judge, or from the perspective of the public. Where the public is exposed to several inquiries dealing with the same allegation of misconduct, the adverse publicity can cause of loss of public confidence in the integrity of the judiciary. Margaret Wilson stated in the first reading in the House that a process should be set out in advance in New Zealand because a
"hastily devised process may damage public confidence and impose risks to judicial independence."89
V FORMAL COMPLAINTS PROCEDURES
The New Zealand Government responded to the problems with informal complaints system for minor complaints, and the inadequacy of the removal provisions, by modelling a formal complaints system on the overseas precedents of New South Wales and Canada. This section describes both the New South Wales and Canadian systems, and then the New Zealand Act in greater detail.
A New South Wales
The Judicial Officers Act 1986 (NSW) established a standing body called the Judicial Commission of New South Wales (the "Judicial Commission"). The most important of its three functions, for the purposes of this paper, is to deal with complaints made against judicial officers. The other two complementary functions are to provide judicial education and training, and to assist the courts in achieving consistency in the sentences they impose.
The Judicial Commission receives all complaints that concern the ability or behaviour of a judicial officer.90 The Commission is not to deal with a complaint however, where it does not raise the question of removal or it has not affected the performance of judicial duties.91 Where the Commission decides to deal with the complaint, it conducts a preliminary examination, and either
89 (2 September 2003) 611 NZPD 8300.
90 Judicial Officers Act l 986 (NSW), s I 5( l ).
91 Judicial Officers Act 1986 (NSW), s 15(2).
d ismisses the complaint, classifies the complaint as minor, or as senous. . ~ Where the Commission classifies the complaint as minor or serious, the complaint is referred to the Conduct Division. The Commission does have the discretion however, to refer a minor complaint to the head of jurisdiction where the Commission does not think the complaint warrants the attention of the Conduct Division.93
The Conduct Division comprises of three people who must all be either current or retired judicial officers. The Conduct Division examines a complaint and may hold a hearing in relation to it.94 The default positions are that a hearing into a serious complaint takes place in public, and a hearing into a minor complaint takes place in private.95
In relation to a serious complaint, the Conduct Division reports to the Governor its findings of fact, and its opinion as to whether the matter could justify parliamentary consideration of the removal of the judicial officer.96 The Minister of Justice then lays the report before both Houses of Parliament, 97 and Parliament is able to initiate removal. The Houses of Parliament are unable to act without a report from the Conduct Division recommending re moval.
B Canada
The Judges Act 1971 , which applies to federally appointed judges, established a standing body called the Canadian Judicial Council (the
"Council"). The Council, as with the New South Wales Judicial Commission, has several purposes, including the ability to investigate complaints made about the conduct of judges. The Council appoints a Judicial Conduct Committee to receive and deal with the complaints that are made, and designates a Chair of the Committee.
92 Judicial Officers Act 1986 (NSW), s 19.
93 Judicial Officers Act 1986 (NS W), s 2 1(2).
94 Judicial Officers Act 1986 (NSW), s 24(2).
95 Judicial Officers Act 1986 (NSW), s 24(2).
96 Judicial Officers Act 1986 (NSW), s 29(2).
97 Judicial Officers Act I 986 ( SW), s 29(3).
The Chair of the Committee initially reviews the complaint and may dismiss the complaint either because it is trivial, vexatious, or without substance, or because the conduct of the judge is not so inappropriate that it warrants consideration of removal. 98 Where the judge recognises that the conduct is inappropriate or improper, the Council may express disapproval of the judge.99 For any complaint not dismissed, the Chair must refer it to a designated panel of the Judicial Conduct Committee_ Joo
The Chair of the Judicial Conduct Committee designates a panel of up to five to assess whether the complaint should be dismissed, or recommend further investigation_ JOI Where the panel recommends further inquiries, the Council may decide to follow this recommendation, 102 and where it does so, appoints an I nquiry omm1ttee. . C . 103
There is also a fast-track procedure to the Inquiry Committee stage.
Where the Minister of Justice or a provincial Attorney-General requests an inquiry into the conduct of a judge, the formal inquiry process takes place immediately without prior consideration of the Chair or the panel. 104
The Inquiry Committee conducts a hearing into the complaint in public,
. . I . 10s
except m except1ona circumstances. After the hearing, the Inquiry Committee reports to the Council and states whether a recommendation for removal should be made. 106 The Council then considers the recommendation, reports to the Minister of Justice, and also submits the record of inquiry.107
The Canadian removal procedure differs markedly from the New South Wales procedure in that the inquiry procedure laid out in the Judges Act 1972
98 Canadian Judicial Council By-Laws, 50(1 ).
99 Canadian Judici al Council By- Laws, 50(2).
100 Canadian Judicial Council By- Laws, 53.
10 1 Canadian Judicial Council B y- Laws, 55.
102 Canadian Judicial Council B y-Laws, 57( 1).
103 Canadian Judicial Council By-Laws, 57(2).
104 Judges Act 1971 (C), s 63( 1).
105 Canadian Judicial Council By- Laws, 63.
106 Canadian Judicial Council By- Laws, 65.
107 "Initial Informati on Request", above n 58, 7.
does not affect the powers of the House of Commons or the Senate. Parliament retains the ability to dismiss a judge from office irrespective of the finding of the Counci 1.
C The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004
The New Zealand Act is modelled very closely on the New South Wales and Canadian procedures, and the differences are more detail than substance.
The Act implements a formal procedure to receive all complaints, irrespective of gravity. It is important to note however, that it maintains distinct systems for the treatment of minor complaints, and the treatment of complaints that might warrant consideration of removal.
1 The Judicial Conduct Commissioner
The Act establishes an office of the Judicial Conduct Commissioner (the "Commissioner"). The Governor-General appoints the Commissioner on the recommendation of the House of Representatives. 108 Before the recommendation is made, the Attorney-General must consult the Chief Justice about the proposed appointment.109 The inclusion of Parliament and the Chief Justice in this process is important because the Commissioner must have the support of both Parliament and the Judiciary if he or she is going to successfully fulfil the role of investigating alleged misconduct of judges. The Act does not specify any criteria for appointment, and there is no requirement for the Commissioner to have legal qualifications.
All members of the public are entitled to make a complaint, the Attorney-General may refer a matter concerning the conduct of a judge, and the Commissioner may on his or her own initiative look into the conduct of the judge.110 The Commissioner is to receive all of the complaints that are made
108 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 7(2).
109 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 7(3).
110 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 12.
about the conduct of a judge irrespective of whether the complaint arises in the exercise of the judge's judicial duties.111
When the Commissioner receives a complaint he or she must acknowledge the complaint in writing, and notify the judge concerned that the complaint has been made.112 The Commissioner must examine the complaint, and in doing this, is able to seek a response from the Judge concerned, make any necessary inquiries, obtain any court documents, and consult the Head of the Bench.113 These preliminary inquiries are carried out in private. When the Commissioner has completed the preliminary examination, the Commissioner can take three possible courses of action.114 The decision of the Commissioner, as to which course of action he or she takes, is subject to judicial review.115 These options available to the Commissioner, set up the distinct procedures for the treatment of minor and serious complaints.
Where the complaint fails to meet the threshold set out in section 16 of the Act, the Commissioner must dismiss the complaint. Grounds for dismissal include that the complaint has no bearing on judicial functions or duties, that the complaint is frivolous or vexatious or not in good faith, that the subject matter of the complaint is trivial, or that it relates to a judicial decision and should therefore be dealt with through the appeal or review process.116
Where the Commissioner believes that an inquiry into the complaint is justified, and that if substantiated could warrant consideration of removal, the Commissioner may recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into the alleged conduct.117 As the Act does not specify when an inquiry is "justified", and the decision to recommend the formation of Conduct Panel is discretionary, the Commissioner has a lot of control over the types of complaints that may proceed to an investigation.
111 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 11.
112 Judicial Conduct Commjssioner and Judicial Conduct Panel Act 2004, s 14.
11 3 Judicial Conduct Commi ssioner and Judicial Conduct Panel Act 2004, s 15.
114 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 15.
11 5 "Third Information Request", above n 68, 7.
11 6 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 16.
11 7 Judicial Conduct Commissioner and Judicial Conduct Panel Act 200..i, s 18.
Where the Commissioner does not dismiss the complaint, and does not recommend the formation of a Conduct Panel, he or she must refer the complaint to the relevant Head of the Bench.118 This is the minor complaints procedure. While the Act does not set out the procedure from that point, the Government intends that Heads of the Bench will consider the complaints in the way that they always have; informally and behind closed doors.119
2 The Judicial Conduct Panel
When the Commissioner recommends the formation of a Conduct Panel, the Attorney-General may at any time appoint a panel.120 The decision of the Attorney-General is discretionary. This means that even where the Commissioner decides that further investigation is warranted, the Attorney- General may not accept this conclusion. The Attorney-General does not have unfettered discretion however, as the ability to form a Conduct Panel is contingent on a positive recommendation by the Commissioner.121
When appointing a Conduct Panel the Attorney-General must consult with the Chief Justice on the proposed membership.122 A Conduct Panel is to comprise of three members and although the exact composition may vary, the Act specifies that there must be two members with legal qualifications and one lay member. While the two legally qualified members may either be current judges, retired judges, barristers or solicitors, it is compulsory that either a judge
. d. d . h I 123 or a retire JU ge sits on t e pane .
Once a Conduct Panel is formed, its role is to inquire into, and report on, the matters that have been referred to it by the Attorney-General. In inquiring
11 8 Minor complaints are negatively defined in that they are not di missed, and not serious enough to warrant removal, they are minor complaints.
119 Office of the Associate Minister of Justice "Enhancing Public Confidence in the Judiciary"
(23 January 2003) 3.
120 Judicial Conduct Comm.issioner and Judicial Conduct Panel Act 2004, s 21 (I).
121 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 21 (I).
122 Judicial Conduct Conun.issioner and Judicial Conduct Panel Act 2004, s 21 (2).
12·1 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 22.
